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Welch-Philippino v. Zoning Board of Appeals of Newburyport

Appeals Court of Massachusetts, Suffolk

September 9, 2014

Cynthia Welch-Philippino & another [1]
v.
Zoning Board of Appeals of Newburyport & others. [2]

Argued June 2, 2014

Civil action commenced in the Land Court Department on April 7, 2011.

The case was heard by Alexander H. Sands, III, J.

Kevin W. Lawless for Cynthia Welch-Philippino.

Ryan P. McManus ( Diane C. Tillotson with him) for Port Associates Limited Partnership & another.

Present: Grasso, Vuono, & Rubin, JJ.

OPINION

Grasso, J.

Cynthia Welch-Philippino (Philippino) appeals from a Land Court judgment determining that the planned reconstruction of a nursing home (the project) by Port Associates Limited Partnership and Whittier Health Network, Inc. (the defendants), is permissible as of right under G. L. c. 40A, § 6. Philippino principally challenges the trial judge's ruling that a dimensionally conforming commercial structure is not, by virtue of its employment for a nonconforming use, a nonconforming structure for purposes of the first sentence of G. L. c. 40A, § 6, first par. We conclude, as did [15 N.E.3d 266] the trial judge, that where the project does not work a " change or substantial extension," ibid., of the preexisting non-

Page 259

conforming commercial use, the reconstruction and replacement of the existing dimensionally conforming structure with a new dimensionally conforming structure is lawful as a matter of right and not subject to the second sentence of G. L. c. 40A, § 6, which provides that preexisting nonconforming structures or uses may only be extended or altered by special permit.

1. Background .

The defendants' 100-bed nursing home facility, built in 1968, is a dimensionally conforming commercial structure situated on a large (5.5 acre) conforming lot in a residential zone. Use of the facility as a nursing home predates the adoption of the Newburyport zoning ordinance, and thus is a lawful preexisting nonconforming use. The defendants plan to replace the old structure with a modernized 121-bed facility that will meet the dimensional requirements of the current zoning ordinance.

The Newburyport zoning board of appeals (board) issued a special permit that authorized the defendants to proceed with the project, and abutters Philippino and her husband appealed under G. L. c. 40A, § 17. After trial, a Land Court judge concluded that the project (1) does not constitute a " change or substantial extension" of the lawful preexisting nonconforming commercial use, and (2) is therefore permissible as of right under G. L. c. 40A, § 6, and not subject to the more restrictive special permit requirements of the local zoning ordinance.[3]

On appeal from the judgment, Philippino's primary claim is that a conforming structure used for a nonconforming purpose is treated as a nonconforming structure under the first sentence of G. L. c. 40A, ยง 6. Consequently, she argues, reconstruction and replacement of such a structure is subject to the ...


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